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LICENSING AND REGISTRATION

IN THE MORTGAGE INDUSTRY

HEARING

BEFORE THE

SUBCOMMITTEE ON 

HOUSING AND COMMUNITY OPPORTUNITY

OF THE

COMMITTEE ON FINANCIAL SERVICES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

SEPTEMBER 29, 2005

Printed for the use of the Committee on Financial Services

Serial No. 109–58

(

(II)

HOUSE COMMITTEE ON FINANCIAL SERVICES 

MICHAEL G. OXLEY, Ohio, Chairman

JAMES A. LEACH, Iowa 

RICHARD H. BAKER, Louisiana 

DEBORAH PRYCE, Ohio 

SPENCER BACHUS, Alabama 

MICHAEL N. CASTLE, Delaware 

PETER T. KING, New York 

EDWARD R. ROYCE, California 

FRANK D. LUCAS, Oklahoma 

ROBERT W. NEY, Ohio 

SUE W. KELLY, New York, Vice Chair 

RON PAUL, Texas 

PAUL E. GILLMOR, Ohio 

JIM RYUN, Kansas 

STEVEN C. LATOURETTE, Ohio 

DONALD A. MANZULLO, Illinois 

WALTER B. JONES, JR., North Carolina 

JUDY BIGGERT, Illinois 

CHRISTOPHER SHAYS, Connecticut 

VITO FOSSELLA, New York 

GARY G. MILLER, California 

PATRICK J. TIBERI, Ohio 

MARK R. KENNEDY, Minnesota 

TOM FEENEY, Florida 

JEB HENSARLING, Texas 

SCOTT GARRETT, New Jersey 

GINNY BROWN-WAITE, Florida 

J. GRESHAM BARRETT, South Carolina 

KATHERINE HARRIS, Florida 

RICK RENZI, Arizona 

JIM GERLACH, Pennsylvania 

STEVAN PEARCE, New Mexico 

RANDY NEUGEBAUER, Texas 

TOM PRICE, Georgia 

MICHAEL G. FITZPATRICK, Pennsylvania 

GEOFF DAVIS, Kentucky 

PATRICK T. MCHENRY, North Carolina 

BARNEY FRANK, Massachusetts 

PAUL E. KANJORSKI, Pennsylvania 

MAXINE WATERS, California 

CAROLYN B. MALONEY, New York 

LUIS V. GUTIERREZ, Illinois 

NYDIA M. VELA ́ ZQUEZ, New York 

MELVIN L. WATT, North Carolina 

GARY L. ACKERMAN, New York 

DARLENE HOOLEY, Oregon 

JULIA CARSON, Indiana 

BRAD SHERMAN, California 

GREGORY W. MEEKS, New York 

BARBARA LEE, California 

DENNIS MOORE, Kansas 

MICHAEL E. CAPUANO, Massachusetts 

HAROLD E. FORD, JR., Tennessee 

RUBE ́ N HINOJOSA, Texas 

JOSEPH CROWLEY, New York 

WM. LACY CLAY, Missouri 

STEVE ISRAEL, New York 

CAROLYN MCCARTHY, New York 

JOE BACA, California 

JIM MATHESON, Utah 

STEPHEN F. LYNCH, Massachusetts 

BRAD MILLER, North Carolina 

DAVID SCOTT, Georgia 

ARTUR DAVIS, Alabama 

AL GREEN, Texas 

EMANUEL CLEAVER, Missouri 

MELISSA L. BEAN, Illinois 

DEBBIE WASSERMAN SCHULTZ, Florida 

GWEN MOORE, Wisconsin, 

BERNARD SANDERS, Vermont

Robert U. Foster, III, Staff Director 

(III)

SUBCOMMITTEE ON HOUSING AND COMMUNITY OPPORTUNITY

ROBERT W. NEY, Ohio, Chairman

GARY G. MILLER, California, Vice Chairman 

RICHARD H. BAKER, Louisiana 

PETER T. KING, New York 

WALTER B. JONES, JR., North Carolina 

CHRISTOPHER SHAYS, Connecticut 

PATRICK J. TIBERI, Ohio 

GINNY BROWN-WAITE, Florida 

KATHERINE HARRIS, Florida 

RICK RENZI, Arizona 

STEVAN, PEARCE, New Mexico 

RANDY NEUGEBAUER, Texas 

MICHAEL G. FITZPATRICK, Pennsylvania 

GEOFF DAVIS, Kentucky 

MICHAEL G. OXLEY, Ohio 

MAXINE WATERS, California 

NYDIA M. VELA ́ ZQUEZ, New York 

JULIA CARSON, Indiana 

BARBARA LEE, California 

MICHAEL E. CAPUANO, Massachusetts 

BERNARD SANDERS, Vermont 

STEPHEN F. LYNCH, Massachusetts 

BRAD MILLER, North Carolina 

DAVID SCOTT, Georgia 

ARTUR DAVIS, Alabama 

EMANUEL CLEAVER, Missouri 

AL GREEN, Texas 

BARNEY FRANK, Massachusetts 

(V)

C O N T E N T S 

Page 

Hearing held on: 

September 29, 2005 .......................................................................................... 1

Appendix: 

September 29, 2005 .......................................................................................... 37

WITNESSES 

THURSDAY, SEPTEMBER 29, 2005

Bryce, Teresa A., Senior Vice President and Director of Legal and Corporate 

Affairs, Nexstar Financial Corporation, St. Louis, MO, testifying on behalf 

of the Mortgage Bankers Association ................................................................. 6

Falk, Joseph L., President, Irian Mortgage Services, Miami, FL, testifying 

on behalf of the National Association of Mortgage Brokers ............................. 8

Hailer, Stephen D., President and CEO, North Akron Savings Bank, Akron, 

OH, testifying on behalf of the American Bankers Association ....................... 10

Hedges, Daniel F., Director, Mountain State Justice, Inc., Charleston, WV ...... 11

Rodriguez, Eric, Director, PolicY Analysis Center, National Council of La 

Raza ....................................................................................................................... 12

Smith, Joseph A. Jr., North Carolina Commissioner of Banks, testifying on 

behalf of the Conference of State Bank Supervisors ......................................... 5

APPENDIX 

Prepared statements: 

Ney, Hon. Robert W. ........................................................................................ 38

Cleaver, Hon. Emanuel .................................................................................... 40

Bryce, Teresa A. ................................................................................................ 41

Falk, Joseph L. ................................................................................................. 50

Hailer, Stephen D. ............................................................................................ 71

Hedges, Daniel F. ............................................................................................. 80

Rodriguez, Eric ................................................................................................. 90

Smith, Joseph A. Jr. (with attachment) ......................................................... 96

(1)

LICENSING AND REGISTRATION 

IN THE MORTGAGE INDUSTRY 

Thursday, September 29, 2005

U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HOUSING

AND COMMUNITY OPPORTUNITY, COMMITTEE ON FINANCIAL SERVICES, Washington, D.C. 

The subcommittee met, pursuant to call, at 10:08 a.m., in Room 

2128, Rayburn House Office Building, Hon. Robert Ney [chairman 

of the subcommittee] presiding. 

Present: Representatives Ney, Miller of California, Jones of 

North Carolina, Waters, Carson, Lynch, Miller of North Carolina, 

Scott, Davis of Alabama, Cleaver, Green, Watt, Jones of Ohio, and 

Kanjorski. 

Chairman NEY. [Presiding.] Good morning, and welcome to the 

hearing of the Housing Subcommittee on the topic of licensing and 

registration in the mortgage industry. 

This is a topic that Congressman Kanjorski and I have addressed 

in our anti-predatory lending legislation, H.R. 1295, the Responsible Lending Act, also known as the Ney-Kanjorski bill. 

However, in the discussions surrounding this proposed legislation, this issue has not garnered a great deal of public attention 

and comment. Most of the debate has centered on which potentially 

abusive lending practices should be curtailed or prohibited in an effort to protect borrowers from unscrupulous lenders. 

Equally, if not more, important is the issue of regulating the people who provide or facilitate mortgage loans. After all, it only takes 

a few bad apples to give the entire industry a bad name. So that 

is what we are here basically to discuss. 

In an industry in which some say that opportunities exist for the 

potential to exploit and take advantage of both sophisticated and 

unsophisticated consumers alike, how could access to that industry 

be regulated to help insulate consumers from the practices I think 

is one of the subjects. 

Should all those who originate mortgages be required to obtain 

a license and register individually? Or are there reasons why access to the mortgage lending industry should be regulated differently for certain participants due to their unique attributes or 

because of their current regulatory requirements? 

In addition, there are currently a number of State laws and legislative movements on the State level that address this very topic. 

The question would be, are those sufficient to address the topic or 

would some degree of minimum uniformity be helpful nationally? 

2

Hopefully, these questions will be answered today so we can continue to find ways to protect consumers from both predatory lending practices and from those bad actors who would take advantage 

of the borrowers. The Ney-Kanjorski Responsible Lending Act attempts to do just that, to protect consumers from bad practices as 

well as from bad actors. 

This is why Congressman Kanjorski and I believe that H.R. 1295 

is the most comprehensive piece of Federal anti-predatory legislation ever to be introduced. The central goal of the Ney-Kanjorski 

bill has been to provide consumers with the best possible protections from abusive lending without unduly and unnecessarily raising the costs of borrowing. Thus, we must try to keep in balance 

the cost to borrowers of licensing registration requirements and the 

benefits the borrower would receive from those requirements. 

While the current version of the bill contains provisions to establish uniform minimum standards for the licensing and registration 

of mortgage brokers, I recognize some within the mortgage broker 

industry would like to see those standards apply more broadly than 

others in the loan origination business. I also recognize that others 

in the loan origination industry do not believe these standards 

should be applied any more broadly. 

This is why basically we are here today, to basically flesh out 

and understand those positions, as well as to hear from others outside of the industry regarding what type of Federal regulation, if 

any, would be helpful. 

I looked at all the witnesses’ statements submitted and the testimony. I look forward to hearing from each of you today. 

I must say, however, that I am perplexed by the testimony submitted by Mr. Hedges, which seems to suffer from the misconception that the licensing and education requirements of Title V of 

H.R. 1295 are intended to be preemptive in nature. The faulty 

premise of the testimony seems to be that the description of the 

standards in Title V as uniform can only result in preemption of 

State laws. 

However, I believe a more accurate reading of Title V in its entirety leads to the conclusion that the uniform standards Congressman Kanjorski and I have set out are uniform minimum standards 

intended to set a baseline of uniformity for State mortgage broker 

licensing education requirements, and do not in any way limit the 

ability of States to go beyond those requirements for stricter standards. 

In case others are suffering from any similar misconceptions to 

the intent of Congressman Kanjorski and I, let me be clear that the 

current provisions of Title V of H.R. 1295 as drafted are intended 

as minimum standards. In other words, they are meant to be set 

as a floor for State standards, but not the ceiling. So I hope this 

clarification will prevent us from being diverted by any misconceptions and will allow us to remain properly focused on the intent of 

this hearing. 

So I look forward to hearing from all of the witnesses. 

At this time, I would like to recognize Mr. Scott. 

Mr. SCOTT. Thank you very much, Mr. Chairman. It is indeed a 

pleasure to be with you on this hearing. I just want to ‘‘amen’’ what 

you have said about the Ney-Kanjorski-Scott bill. 

3

I say that with great affection, knowing that the major part of 

that bill is my own bill which deals with financial literacy and education, which in the final analysis is truly the centerpiece or the 

answer to much of the financial abuse, which is to certainly provide 

vulnerable people with access to information and a help-line with 

our toll-free number, and also to provide resources and grants 

down to the local level so that we can truly deal with the real problem in this issue, which is a lack of folks being financially literate, 

educated, and make sure that they call somebody before they sign 

on the dotted line. 

Again, I am particularly involved in this issue because reports 

continue to show that my district in the metro Atlanta area, which 

I represent 13 counties in and around the Atlanta metro area, 

leads the nation in mortgage fraud in America. That is another 

reason why I believe that the Ney-Kanjorski-Scott bill is a true 

panacea for much of our problem. 

In August, Georgia ranked fourth in the number of foreclosed 

properties. The combination of a good local economy, relatively low 

housing prices, and favorable loan rates have fueled record home 

sales and mortgage refinancings. Unfortunately, the high volume of 

home sales has allowed unscrupulous lenders to commit fraud on 

unsuspecting consumers. 

Now, let me state from the outset that most mortgage brokers 

are good people. They are good actors. They are good business people. However, we know that bad actors continue to stay in this 

business. We have to find a way to feeder them out. While more 

Americans have access to credit than ever before, more fraud has 

also occurred than ever before. Therefore, it is important to create 

additional national regulations for the mortgage industry. Congress 

should also heed the warning from Fed Chairman Greenspan that 

creative financing of mortgages could backfire if the economy dips 

and interest rates increase. 

Some questions to consider today include how mortgage brokers 

should be regulated in comparison to mortgage bankers. Also, we 

should ask if there are incentives for mortgage brokers to unnecessarily steer poor and minority consumers into high-cost loans. 

What incentives to mortgage brokers have to sell a good loan? Once 

that loan is brokered and passed on to a lender, does that end the 

involvement of the mortgage broker? 

We have to have a better explanation of the use of yield spread 

premiums by mortgage brokers. Some consumer groups complain 

that these premiums provide incentives to sell unnecessary highcost loans to consumers. How do you respond to these accusations? 

What steps can the lending industry take to be vigilant in stopping 

mortgage fraud in the Gulf as a result of Hurricanes Katrina and 

Rita before it actually happens? These are pressing questions that 

we certainly need to grapple with this morning. 

And finally, is it important that Congress consider the urgent 

need to act on mortgage fraud? Given the explosion of lending activity that will be needed to rebuild the Gulf region, mortgage 

crooks will certainly see this climate as an opportunity for theft. 

There is no question about it. Urgency must be the order of the 

day. The timing of this hearing is so significant. We must be 

4

proactive. We must not allow further atrocities to befall the Gulf 

residents as they rebuild. 

Thank you, Mr. Chairman. I yield back my time. 

Chairman NEY. I want to thank the gentleman. I want to also 

apologize to the gentleman for not making a statement, because 

your input has been so valuable, especially on the counseling. I appreciate your support of the Scott-Kanjorski-Ney bill that we have 

there. 

Also, I wanted to note without objection the gentlelady from 

Cleveland will be participating in the hearing today without objection. 

Mrs. JONES OF OHIO. Thank you, Mr. Chairman. 

Chairman NEY. Thank you. 

And who was also a member of this subcommittee, and I would 

note had probably a perfect attendance record. 

Mrs. JONES OF OHIO. Oh, I am loving it. Keep talking. 

Chairman NEY. That is an Ohio thing. Go Bucks. 

[Laughter.] 

Mr. Jones of North Carolina? 

Mr. JONES OF NORTH CAROLINA. I will waive opening. 

Chairman NEY. Ms. Tubbs-Jones? 

Mrs. JONES OF OHIO. My good colleague from Indiana, I just 

want to thank the chairman for giving me the opportunity to participate. 

I am here because this is an issue that is very important for my 

particular community in the State of Ohio, Cuyahoga County; we 

are battling with huge mortgage difficulties and foreclosures, probably one of the highest foreclosure rates that exist in the country. 

I just come here because of my interest and also because I have 

introduced a piece of legislation that would require mortgage brokers to be involved in a certification program. It is H.R. 1994. 

I look forward to the testimony and participating. I want to 

thank the chairman and the ranking member for doing such a 

great job on housing issues. It is the basis of wealth for most lowincome and middle-income people. If we cannot hold onto that 

wealth in our communities, we have a real problem. 

So thanks, Mr. Chairman, very, very much. 

Chairman NEY. I thank the gentlelady and the members for 

being here today. 

The witnesses are Mr. Joseph A. Smith, Jr., North Carolina commissioner of banks, testifying on behalf of the Conference of State 

Bank Supervisors; Ms. Teresa A. Bryce, senior vice president and 

director of legal and corporate affairs, Nexstar Financial Corporation, St. Louis, Missouri, testifying on behalf of the Mortgage Bankers Association; Mr. Joseph L. Falk, president, Irian Mortgage 

Services, Miami, Florida, testifying on behalf of the National Association of Mortgage Brokers; Mr. Stephen D. Hailer, president and 

CEO, North Akron Savings Bank, Akron, Ohio, testifying on behalf 

of the American Bankers Association; Mr. Daniel F. Hedges, director of Mountain State Justice, Incorporated, Charleston, West Virginia; and Mr. Eric Rodriguez, director, Policy Analysis Center, National Council of La Raza. 

Thank you. 

We will start with Mr. Smith. 

5

STATEMENT OF JOSEPH A. SMITH, JR., NORTH CAROLINA 

COMMISSIONER OF BANKS, TESTIFYING ON BEHALF OF THE 

CONFERENCE OF STATE BANK SUPERVISORS 

Mr. SMITH. Thank you, sir. 

Good morning, Chairman Ney and members of the subcommittee. 

I am Joseph A. Smith, Jr., North Carolina commissioner of banks. 

I am here on behalf today, as you have said, of the Conference of 

State Bank Supervisors, or CSBS. 

I have provided a full written statement and respectfully request 

that it be included in the record of the hearing. 

Chairman NEY. Without objection. 

Mr. SMITH. Thank you, sir. 

Thank you for giving CSBS an opportunity to update the subcommittee on the CSBS-AARMR residential mortgage lending 

project. This is a proactive effort by the States to reduce regulatory 

burden on the mortgage industry by creating uniform applications 

and an online registration system. This system will also increase 

accountability in the industry and help fight predatory lending and 

mortgage fraud by identifying bad actors and eliminating their 

ability to move from State to State. 

Residential mortgage lending is a local activity, but changes in 

technology and deregulation make financing these loans a global 

industry. The damage done by predatory lending and mortgage 

fraud, however, is still very much local. States may choose to regulate mortgage lenders, mortgage brokers, mortgage servicers, individual mortgage originators, or some combination of these. North 

Carolina has chosen to license lenders, brokers, and originators. 

Other States have chosen differently by adopting registration statutes, for example, or in the case of two States by taking no action 

at all. 

Licensing protects the public by allowing the Government to ensure that all businesses and professionals offering a particular 

service, in this case mortgage lending, to the public are operating 

honestly and within the requirements of applicable law. Licensing 

sets minimum standards for entry into particular businesses, protecting both the public and legitimate business from fraudulent operators. 

The Government’s ability to rescind or limit a license creates a 

powerful incentive for businesses and professionals to comply with 

the law and conduct their practices in a responsible manner. Registries serve the public and the industry by offering a single source 

of information about businesses and professionals offering a service. Registries alone, however, do not indicate that any registered 

business or individual meets a particular standard of competence 

or ethics. Registries serve the public interest best when registration 

requires that listed companies or professionals meet substantive 

legal and regulatory requirements. 

We understand that the largest financial services providers run 

a more coordinated regulation for their national activity. The State 

of North Carolina and CSBS support coordinated regulation in 

order to promote the modernization of financial services, healthy 

competition among providers, and greater availability of financial 

services. The CSBS-AARMR residential mortgage lending project is 

an opportunity both to reduce burdens on the industry and to help 

6

create more uniform nationwide markets, while increasing our citizens’ protection from mortgage fraud and predatory lending. 

The CSBS Board of Directors has established regulatory and legislative task forces to examine and improve the efficiency and effectiveness of licensing and supervision of the nation’s State-regulated 

mortgage lending industry. This task force intends to provide a 

uniform mortgage application, develop a comprehensive mortgage 

licensing and supervisory database, and adopt a coordinated examination agreement. The task force has nearly finalized the uniform 

mortgage applications for lenders and brokers, broker companies, 

and individual loan originators. Over 20 State mortgage regulators 

have agreed to beta test these forms. Work is still in process on a 

renewal application and on branch applications. 

With the information from these forms, CSBS intends to create 

a Web-based database containing information about the criminal 

history, credit history, consumer complaints, and enforcement actions for mortgage companies and professionals to be used by State 

regulatory agencies. This would allow States to identify fraudulent 

and abusive lenders and professionals when they leave one State 

and seek licenses in another. 

Identifying and removing these professionals and firms benefits 

consumers. Delivering such comprehensive supervision also benefits the vast majority of mortgage lenders and brokers by removing 

bad actors whose conduct harms the market generally and honest 

competent lenders and brokers in particular. The national registry 

will include all professionals and companies currently required to 

be licensed or registered under State law. 

Over time, we believe that the advantages of being listed on a 

national registry will encourage most legitimate industry participants to submit their information to the registry voluntarily, even 

if State law does not require them to do so. CSBS is committed to 

the overall goal of enhancing a State regulatory system that works 

efficiently and effectively for borrowers, the industry and regulators. CSBS is equally committed to a dialogue with Federal and 

State policymakers and the mortgage lending and brokerage industries to address issues of applicable law and law enforcement 

aimed at ending abusive lending practices. 

Chairman Ney, we commend you, Representative Waters, Representative Kanjorski, Representative Scott and all the members of 

the subcommittee for considering this very important issue. I thank 

you for your time and would be happy to answer any questions. 

[The prepared statement of Joseph A. Smith Jr. can be found on 

page 96 in the appendix.] 

Chairman NEY. Thank you. 

Ms. Bryce? 

STATEMENT OF TERESA A. BRYCE, SENIOR VICE PRESIDENT 

AND DIRECTOR OF LEGAL AND CORPORATE AFFAIRS, 

NEXSTAR FINANCIAL CORPORATION, ST. LOUIS, MO, TESTIFYING ON BEHALF OF THE MORTGAGE BANKERS ASSOCIATION 

Ms. BRYCE. Good morning, and thank you, Mr. Chairman, for inviting the Mortgage Bankers Association to testify on Title V of the 

Responsible Lending Act of 2005. 

7

My name is Teresa Bryce, and I am senior vice president and director of legal and corporate affairs for Nexstar Financial Corporation in St. Louis, Missouri. I am also co-chair of the MBA State Licensing Task Force. 

MBA supports Title V because we believe it will elevate the 

standard of professionalism within the mortgage broker industry. 

Title V will also result in greater accountability among mortgage 

brokers and increase uniformity in the State laws to which they 

are subject. It is important to understand the difference between 

mortgage brokers and mortgage bankers. Mortgage bankers underwrite applicants and actually fund the loan in a mortgage transaction. 

From the moment a loan has closed, mortgage bankers assume 

the credit, interest rate, compliance, and fraud risk associated with 

the loan. Mortgage banking companies are corporately responsible 

for every loan originated by any of their employees. Even if the 

lender sells the loan to an investor, the lender remains financially 

liable for certain risks associated with the loan. If an investor finds 

quality, compliance, or fraud problems with the loan, they can and 

do force the lender to repurchase. 

This economic regulation by the marketplace extends far beyond 

the loan closing. For this reason, mortgage bankers typically have 

extensive employee training and monitoring policies. Mortgage brokers, on the other hand, do not fund, underwrite, or service mortgage loans. Mortgage brokers are commissioned sales people independent of the mortgage banker who typically work with a number 

of mortgage bankers at any one time, matching homebuyers with 

lenders. Mortgage brokers do not have capital at risk in a transaction and their responsibility for a loan typically ends when a loan 

closes and they receive their payment. This is a key difference. 

At some point in the transaction, mortgage bankers have funds 

at risk and must continually maintain a significant amount of financial capital to back up the loans they sell. Currently, 49 States 

and the District of Columbia require mortgage bankers to be corporately licensed before lending in their States. MBA supports 

State-level corporate licensing of mortgage banking companies. We 

believe that States should be able to approve and monitor the companies that make loans to citizens within their States. 

Unfortunately, however, some States are placing particularly 

burdensome licensing requirements on mortgage banking companies and in some cases are even moving beyond corporate licensing 

and requiring the licensure of individual loan officers and support 

staff working within a licensed mortgage banking company. Collectively, these new State requirements raise the cost of mortgage 

originations and threaten to dampen competition and innovation of 

mortgage markets within States. 

Further exacerbating the collective impact of these various State 

laws is the fact that the vast majority lack reciprocity provisions. 

MBA believes mortgage bankers are different than mortgage brokers and these differences underscore the need for mortgage bankers and mortgage brokers to be subject to different oversight regimes. Unfortunately, MBA does not see this difference being reflected in State licensing laws affecting mortgage bankers. 

8

While States have a relatively long history of requiring licensure 

of mortgage banking companies, the same is not true for the mortgage brokerage industry. This industry is in great need of licensure 

standards and Title V offers an opportunity to do this in a reasonable manner. 

Furthermore, the database created by Title V has the potential 

to be a great resource to regulators, mortgage bankers, and the 

public. Currently, there is no Federal oversight of mortgage brokers, nor does there exist a single database of mortgage brokers. 

MBA is aware that some are concerned that the exemptions in 

Title V are too broad and MBA supports tightening these exemptions as necessary. MBA supports the licensing provisions under 

Title V as we believe they will elevate and standardize mortgage 

brokerage licensing requirements. MBA encourages the committee 

to study possible Federal initiatives that will assist mortgage bankers when dealing with corporate licensing laws at the State level. 

Thank you for the opportunity to testify today. I look forward to 

answering your questions. 

[The prepared statement of Teresa A. Bryce can be found on page 

41 in the appendix.] 

Chairman NEY. Thank you. 

Mr. Falk? 

STATEMENT OF JOSEPH L. FALK, PRESIDENT, IRIAN MORTGAGE SERVICES, MIAMI, FL, TESTIFYING ON BEHALF OF 

THE NATIONAL ASSOCIATION OF MORGAGE BROKERS 

Mr. FALK. Good morning, Chairman and members of the subcommittee. My name is Joseph Falk, and I am legislative chairman 

of the National Association of Mortgage Brokers and a past president. Thank you for inviting NAMB to testify here today. 

We appreciate the opportunity to address the role of the originator as part of a package of consumer protections to address the 

issue of predatory lending. As the voice of mortgage brokers, 

NAMB speaks on behalf of more than 27,000 members in all 50 

States. I commend the committee for its leadership on this issue. 

NAMB first introduced our model State statute initiative in 2002, 

and many of the elements that are included in this legislation are 

contained in our model initiative. 

NAMB implores Congress to embrace the concepts contained in 

our initiative and create a national minimum standard that will 

ensure that all originators, regardless of employer, are licensed and 

properly educated. NAMB opposes the efforts of those bad actors in 

our industry that create, promote, or fund predatory loans. But 

while we may originate the majority of mortgage loans, we do not 

originate all of them. Regulation that seeks to protect the public 

should include all originators. 

We refer to the term ‘‘all originators’’ because there is no functional difference between being a broker, a banker, or a lender 

when taking a mortgage application with a consumer. We urge the 

committee to drop all of the exemptions under 501(b)(2), with the 

exception of the Federal depositories, with conditions. 

There are five critical elements that we see in licensing and registration. One, it should include everyone who takes a mortgage application from a consumer. Two, there should be pre-license eduVerDate 0ct 09 2002 12:20 Dec 27, 2005 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 G:\DOCS\25224.TXT FIN1 PsN: MICAH
9

cation; three, continuing education requirements; four, before an 

originator deals with a consumer, the criminal background check of 

that individual should be obtained and any originator who have 

been convicted of a financial crime should be barred from our industry, no entry in our industry. There should be a national database of all originators so that bad actors caught in one State cannot 

easily go to another State. 

Let’s talk about all originators for a moment. We respectfully disagree with our friends at the MBA. Any proposal to increase professionalism must include everyone. All loan officers should be 

knowledgeable about the loan options available and be able to answer consumer questions. It is all about the consumer questioning. 

Leaving any channel of distribution out of this equation eviscerates 

effective policy to ensure expertise. 

Education requirements. All originators should be schooled in the 

basics of our industry. They should be able to answer basic questions about underwriting, servicing, escrows, and origination. We 

do not want mortgage brokers or lenders having uneducated employees dealing with consumers. 

Continuing education requirements. When I started in the business, there was no RESPA. There was no credit scoring. There 

were no automated underwriting systems. And clearly, there were 

no 80-20 no-MI loans. The marketplace is dynamic, of course, and 

the originator’s knowledge should be maintained and kept current. 

Criminal background checks are an important concept to the 

mortgage broker community. The consumer is required to divulge 

their personal financial records to a loan officer no matter who they 

work for. The data is the keystone for identity theft. Do we want 

that person, regardless of their employer, to be someone convicted 

of financial fraud? If a consumer shops, they give this information 

out multiple times. We believe that convicted felons should not 

have unfettered access to private consumer records. It is good public policy to protect all consumers, regardless of where they choose 

to get their mortgage loan. It does not matter who you work for. 

It is the originator and the consumer sitting at the table discussing 

that mortgage loan. 

A national database. We support a national database, but only 

if it includes all industry participants. Current language in Title V 

applies only to brokers, and to be effective it should apply to anyone who takes a consumer mortgage application. The purpose of 

the database is to track State licensing information across State 

lines so that bad actors, once caught, cannot move State to State, 

community to community, and continue with those bad acts. Leaving out employees of depositories, banks, consumer finance companies, lenders, originators, leaves gaps in this vital consumer protection. 

We look forward to working with the committee to address these 

important issues. Our written testimony expands upon our views 

and includes a copy of our model State statute initiative. Please include our submission in the record for further information. 

Thank you for your consideration. I am happy to answer any 

questions you may have. 

[The prepared statement of Joseph L. Falk can be found on page 

50 in the appendix.] 

10

Chairman NEY. Thank you. 

Mr. Hailer? 

STATEMENT OF STEPHEN D. HAILER, PRESIDENT AND CEO, 

NORTH AKRON SAVINGS BANK, AKRON, OH, TESTIFYING ON 

BEHALF OF THE AMERICAN BANKERS ASSOCIATION 

Mr. HAILER. My name is Steve Hailer. I am president and CEO 

of North Akron Savings Bank in Akron, Ohio. I am also the vice 

chairman of the American Bankers Association Housing and Federal Home Loan Bank Committee. 

ABA, on behalf of the more than 2 million men and women who 

work at the nation’s banks, brings together all categories of banking institutions to best represent the interests of a rapidly changing industry. Its membership includes community, regional, moneycenter banks and holding companies, as well as savings associations, trust companies, and savings banks. This makes ABA the 

largest bank trade association in the country. 

I am pleased to be here today to present the views of ABA on 

Title V in H.R. 1295, the Responsible Lending Act. Title V would 

establish licensing requirements and minimal Federal standards 

for independent mortgage brokers. Among the other things Title V 

would require is background checks and continuing education of 

independent brokers. Title V would not apply to brokers who perform work for banks or an affiliate of a bank, including those who 

fund, underwrite, service, or sell mortgage loans. 

In my testimony, I would like to make three main points. First 

of all, ABA believes that practices that deceive, defraud and otherwise take advantage of consumers are predatory and have no place 

in our financial system. Existing laws against these practices 

should be rigorously enforced. Mortgage lending is a vast enterprise which requires the coordination of several layers of professionals throughout the process of issuing a home loan. 

The damage caused by deceptive and unscrupulous sales practices extends well beyond the consumer who is targeted. News and 

Government reports of these people previously described as bad actors hurt everyone and ruin businesses and reputations. In contrast, ethical and efficient brokers attract more customers and generate more business for themselves and lenders. The success or 

failure of a business depends upon the satisfaction of its customers. 

Secondly, banks and the activities of mortgage brokers who act 

on banks’ behalf are heavily regulated and thoroughly examined for 

compliance with a whole host of Federal laws and regulations. 

Banks are subject to the Truth in Lending Act, Home Mortgage 

Loan Disclosure Act, Equal Credit Opportunity Act, the Real Estate Settlement Procedures Act, the Fair Lending Act, and many 

other laws. 

Independent mortgage brokers are not subject to the same 

breadth of consumer protection laws and regulations with which 

banks must comply. Importantly, a regulatory system does not 

exist to examine independent mortgage brokers for compliance, 

even with those laws that apply to them such as RESPA. 

Third, therefore we believe as an organization and on behalf of 

the industry, that the licensing of independent brokers is a rational 

step towards better consumer protection. Title V of H.R. 1295 

11

would address the present regulatory gap in current consumer protection law in a minimally intrusive manner by requiring independent brokers to comply with minimum licensing requirements 

under either state or federal law. 

It will create a database of licensed brokers that will allow consumers to gain useful information on any broker they may consider 

using. The database would also enhance a lender’s ability to screen 

brokers, further ensuring that lenders and consumers only deal 

with legitimate brokers. 

Thank you. We will answer any questions when appropriate. 

[The prepared statement of Stephen D. Hailer can be found on 

page 71 in the appendix.] 

Chairman NEY. Thank you, Mr. Hailer. 

Next, Mr. Hedges? 

STATEMENT OF DANIEL F. HEDGES, DIRECTOR, MOUNTAIN 

STATE JUSTICE, INC., CHARLESTON, WV 

Mr. HEDGES. Chairman Ney, members of the committee, thank 

you for inviting me here to testify regarding mortgage brokers, 

predatory lending, and appropriate Federal and State regulations. 

I am the director of Mountain State Justice, a nonprofit legal services program in Charleston, West Virginia, which exclusively represents low-income people affected by these practices. 

My primary purpose in coming here today is to convince you to 

pass only legislation which makes clear that the safeguards in existing law currently employed to save homes from foreclosure remain in place. 

I appreciate the chairman’s statement that this is intended only 

as a minimum and that present parts of State law are intended to 

be safeguarded. I encourage the Congress to include language that 

would make that clear because, as I was confused, I am sure others 

will be confused too. 

Moreover, the exemptions are very broad for who is defined as 

a mortgage broker. If those exemptions are carried through to the 

substantive provisions, if the uniform requirements of licensing are 

carried through to the substantive provisions and all brokers are 

exempted from the substantive provisions as a result of the uniform provisions being enacted as to licensing, then there would be 

broad-based exemption from State law. 

In my practice, we currently represent more than 600 homeowners in 60 predatory lending cases. Our cases give homeowners 

a protection from predatory mortgage brokers. There are a number 

of significant protections applicable to mortgage loans originated by 

brokers. In licensing alone, there is a bonding requirement. There 

is a fiscal soundness requirement and a creditworthiness requirement. This uniform licensing requirement would presumably preempt those provisions and not replace them with any requirement 

other than that they be licensed on the Federal level. 

The fiscal soundness and bonding requirement would give very 

significant protections for consumers and lead to the non-licensure 

of some brokers who should not be licensed. The substantive provisions in our State law which would be avoided by the broad licensing, potentially avoided without clarification from the broad licensing uniformity, are brokering a loan in excess of market value of 

12

the home; brokering and non-amortizing loan; prohibiting brokers 

from participating in compensation arrangements with appraisers 

which influences independent judgment; brokering a loan without 

economic benefit to an unsophisticated consumer; limitations on exorbitant broker fees; brokering a real estate loan which includes a 

security interest in an unattached mobile home; and brokering a 

loan with loan documents that are not filled in. 

These kinds of restrictions are among the limits on broker activities which have in the last few years weeded out the most 

exploitive brokers in the State. There is still much work to be done, 

but these enforcement actions are currently available only through 

State law. If the licensing uniformity that is required by this act 

means that the brokers can exempt themselves from the substantive provisions as well, then we have lost a lot. 

The exemption provisions are very broad and appear similar to 

those definitions in RESPA that provide coverage. The one exemption of any person who is a creditor under the Truth in Lending 

Act and makes more than $1 million in loans per year covers almost any mortgage broker in my State who might otherwise not be 

exempted. This essentially permits brokers to avoid State and Federal regulation, seemingly by table-funding a few loans a year that 

is closing them in their own name, and immediately assigning 

them. That is a very broad exemption and it needs to have a hard 

look by the committee. It is hard to imagine any mortgage broker 

who would not be covered by this exemption. 

The lack of meaningful substantive protections is a major issue. 

Even for those few mortgage brokers who might be covered, there 

are no meaningful substantive limitations. I would urge the committee to consider those substantive limitations that we have and 

have weeded out a number of abusive brokers. 

Chairman NEY. I am sorry to interrupt, but the time has expired, 

if you would like to summarize and the rest will go in the record. 

I just want to make sure we have time. 

Mr. HEDGES. The remainder is in my written statement. Thank 

you for the opportunity to appear. I would be glad to answer any 

questions. 

[The prepared statement of Daniel F. Hedges can be found on 

page 80 in the appendix.] 

Chairman NEY. Thank you. 

Mr. Rodriguez? 

STATEMENT OF ERIC RODRIGUEZ, DIRECTOR, POLICY 

ANALYSIS CENTER, NATIONAL COUNCIL OF LA RAZA 

Mr. RODRIGUEZ. Thank you, Mr. Chairman and members of the 

subcommittee, for inviting me to present today. 

As an advocate for Latinos, I have worked for more than a decade on economic employment and financial security policy issues. 

As director of NCLR’s policy analysis center, I oversee research, 

policy analysis, and advocacy on a number of specific issues, including housing and homeownership. 

As you know, NCLR serves America’s 40 million Hispanics of all 

regions of the country. We work through a network of more than 

300 nonprofit affiliate organizations. This includes working with 40 

community-based organizations that operate and administer preVerDate 0ct 09 2002 12:20 Dec 27, 2005 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 G:\DOCS\25224.TXT FIN1 PsN: MICAH
13

purchase homeownership counseling programs. Since 1997, NCLR’s 

homeownership network has counseled more than 115,000 families 

and more than 17,000 have become new homeowners. 

The issue of mortgage broker licensing and registration is important and timely. Today, Latino homeownership lags behind that of 

whites by 28 percentage points. Low homeownership rates translate into lower levels of wealth and fewer financial ownership opportunities for Hispanics. What is more, homeownership is a vital 

piece of the American story, not to mention a central ingredient in 

the U.S. economy. 

Hard-working Latinos have a deep desire to own their own 

homes. Because of sheer numbers, creating more Latino homeowners means greater economic prosperity for the nation. Hispanics are now entering the home-buying market in record numbers. In fact, the number of Hispanic homeowners grew by 96 percent between 1993 and 2003. 

Yet at the same time, Latino wealth levels have not grown proportionally. Home equity makes up approximately two-thirds of the 

wealth of Hispanic households. In 2002, Latinos maintained only 

60 percent of the median value of home equity as that owned by 

white households. Owning a home is important for Latinos, but 

that alone does not guarantee sustainable financial wealth. 

To understand why, we have to consider that Latinos enter the 

marketplace with limited exposure to and experience with financial 

products. Many face unique challenges to accessing the best information and making the most informed choices about financial products. For these reasons, intermediaries and brokers can and do 

play a vital role in connecting Latinos to valuable and affordable 

financial products. 

Mortgage brokers and HUD-certified counseling agencies specifically play an important role in increasing Hispanic homeownership. 

In fact, these intermediaries offer access to a wide range of products, workforce diversity, and many use the one-on-one approach 

that Latino borrowers appreciate. 

Clearly, housing counselors and mortgage brokers work with different types of consumers, but as the home-buying market grows 

in size and complexity, the need for intermediaries to bridge the 

gap between creditors and Latino borrowers becomes more important. That is why Latinos have a vital stake in this debate. 

With respect to mortgage brokers specifically, State and Federal 

oversight structures have not kept up with changing market demographics. Stories of Latino homeshoppers being victimized by unscrupulous mortgage brokers are not uncommon. Many of these 

families end up in our affiliate housing counseling organization 

seeking assistance. These stories and experiences suggest that 

stronger consumer protection laws are needed. 

Based on the collective experience of our housing counselors, we 

have identified three areas in which we have particular concerns. 

First, the accountability standards currently in place for mortgage 

brokers are inadequate. While States are tackling these issues, 

some very effectively, the lack of a meaningful Federal law in this 

area exacerbates the problem. Second, some families find themselves having been unfairly steered into expensive loans. MarketVerDate 0ct 09 2002 12:20 Dec 27, 2005 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 G:\DOCS\25224.TXT FIN1 PsN: MICAH
14

based broker incentives such as yield spread premiums play no 

small part. 

Finally, many borrowers mistakenly assume their broker has the 

responsibility to find them the best deal. In practice, a broker’s 

role, responsibility and fees are not always disclosed. Mortgage brokers serve as the main liaison between a borrower and their product choices. This relationship demands trust and accountability in 

order to function properly. The home-buyer market can only benefit 

from strong standards that maintain and protect its integrity. 

As I mentioned before, NCLR has invested heavily in housing 

counseling. We understand the important role of the broker. While 

the clientele business models are slightly different, both industries 

help Latinos to access home loans. We also understand the importance of strong license and registration requirements. Housing 

counselors, for example, must complete 120 hours of course work 

and pass an exam to become certified. Also, HUD-certified counseling agencies are audited every other year and are held to high 

bookkeeping and reporting standards. In this sense, HUD plays a 

vital role in ensuring standardizing and quality in the housing 

counseling field. 

The Federal role is also prominent in other similar fields. For example, like mortgage brokers, stock brokers cultivate a trusting relationship with their clients. Their clients rely on their advice and 

expertise regarding significant financial purchases. The Securities 

and Exchange Commission must maintain consumer confidence 

and ensure safe market practices. The SEC relies on enforcement 

and accountability tools, fiduciary disclosure, bookkeeping standards, and regular audits. There are existing models of how Federal 

oversight could effectively shape the mortgage broker industry and 

protect more consumers. 

The Responsible Lending Act includes provisions for minimum 

mortgage broker licensing standards and creates a national registry. We commend the authors and the members of this committee 

for tackling this issue. Licensing and registration, however, do not 

go far enough. Much more will be needed to create a safe and 

sound market. Better standards are needed for the licensing provisions. Also, more oversight and accountability and enforcement will 

be necessary to foster genuine consumer confidence. The comprehensive model is not represented in any legislation currently before the committee. 

Therefore, NCLR makes the following three recommendations. 

Chairman NEY. I am sorry, Mr. Rodriguez, your time has expired. If you would like to sum up and then put the rest in for the 

record. 

Mr. RODRIGUEZ. Sure. Most of that is in the record already, so 

I will cease here and thank you for the opportunity. 

[The prepared statement of Eric Rodriguez can be found on page 

90 in the appendix.] 

Chairman NEY. Thank you. 

Let me just begin with a question I have. One of the main premises of the mortgage brokers’ argument against having minimum licensing education and registry requirements apply only to them 

and not mortgage bankers is a scheme such as would allow a bad 

15

actor who practices as a mortgage broker to leave that profession 

and begin practicing as a mortgage banker without being detected. 

On that premise, are there safeguards in place in the mortgage 

banking industry that would prevent that type of scenario? 

Ms. BRYCE. Yes, Chairman, I think there are. For one thing, 

most companies have pretty extensive screening requirement in 

hiring, to start with. The other thing is that there is corporate 

backing, so you have oversight at the State level. I know for our 

own company last year we had 10 State exams during the course 

of the year. 

So as a result, there is a lot of oversight. There is an opportunity 

to examine what individual employees are doing. Most mortgage 

banking companies, if not all, have extensive compliance programs, 

have extensive quality assurance programs. So consistently, the individual is being reviewed in terms of their practices. 

Chairman NEY. The mortgage brokers could say that same thing. 

Ms. BRYCE. I think the structure is very different. I think for one 

thing, you have——

Chairman NEY. Internal structure? 

Ms. BRYCE. The internal structure, the size of mortgage bankers 

are usually pretty large, the number of States that are already regulating them, almost all States regulate. Frankly, the amount of 

money that is put towards examining mortgage bankers is very different. As a result, there is typically a lot more focus on examining 

mortgage bankers in coming in, looking at loan files, looking at 

practices, et cetera. I do not think that is typically found on the 

State level with mortgage brokers. 

Chairman NEY. Mr. Falk, do you want to respond? 

Mr. FALK. Respectfully, we would disagree with that. Mortgage 

bankers and mortgage brokers, mortgage lenders all have small 

and large operators. They all have licensees in various places. My 

experience is that many of the mortgage broker shops have training and education and compliance programs, just as some small 

mortgage lenders do not have such training and compliance programs in place. 

In my State of Florida, a licensed mortgage lender may act in 

one transaction as a mortgage broker, then act as a mortgage lender upon getting further information about that consumer, and ultimately may fund that loan as a mortgage broker transaction with 

the same consumer. So in our view, it is all about the consumer 

sitting down with the loan officer and all of the rules and regulations should apply equally across the board. 

Chairman NEY. So we have two different views. 

How about from the regulatory end, Mr. Smith, on my original 

question again? 

Mr. SMITH. Yes, if I could comment on that briefly. My experience in North Carolina after 3 years of regulating lenders and brokers is that there is a sort of free agent situation in terms of originators that people commonly go between; not only brokers and 

lenders, but also brokers, lenders, and dare I say it, the subsidiaries of depository institutions. So there is common movement. It 

is common to see movement among these various types. 

16

I will say, in our experience the background checks that these 

people go through as they change employment varies significantly. 

Some is good and some is not so good. 

Chairman NEY. Mr. Hailer, does the ABA have a position on licensing or not licensing the brokers, or licensing them or licensing 

everybody? 

Mr. HAILER. I think, Mr. Chairman, the position of the ABA correctly reflects the fact that we do not feel that those in the banking 

industry and those that work for the banking industry need to be 

licensed. We very specifically feel that the regulations that we submit to on a daily basis do not warrant registration. And particularly just the whole examination and audit process, and then you 

add Sarbanes-Oxley on top of that, we have a lot of people watching what we do. To be perfectly frank, the clearing processes of our 

employees would exceed even the minimum standards here far and 

away. 

So what we are really arguing for here are minimum standards. 

So we, again going back to the testimony, wholeheartedly support 

the minimum registration and the minimum database. It will help 

out the banking industry long term. 

Chairman NEY. My time is about to expire, but Mr. Hedges? 

Mr. HEDGES. My observations in working in this area for 35 

years is the compensation system for brokers means that the requirements for licensing dealing with brokers is far different from 

that of the banks. Banks do not engage in the same types of activities that the brokers do. The licensing requirements that we have, 

bonding, individual broker bonding, individual broker creditworthiness, makes a big difference in who is allowed into the industry. 

Now, these types of people do not work for banks, and that kind 

of licensing and those kind of requirements are not needed because 

the incentives that are built into the system there do not bring the 

same kind of people into the industry. 

Chairman NEY. Thank you. My time has expired. 

Mr. Scott? 

Mr. SCOTT. Thank you very much, Mr. Chairman. 

First of all, I would like to get some basic differentiation between 

the mortgage bankers and the mortgage brokers. For example, can 

any of you tell me what percentage of subprime loans are handled 

by the mortgage brokers as compared to the mortgage bankers? 

Does anybody have any idea on that? 

Mr. FALK. Mr. Scott, I do not have exact statistics for you, but 

clearly mortgage brokers do participate in the non-prime marketplace to a higher percentage than would mortgage brokers be involved in the prime marketplace. 

Mr. SCOTT. Okay. How are the mortgage brokers and the mortgage bankers regulated differently under current law? 

Ms. BRYCE. I think with respect to the mortgage bankers, the 

mortgage bankers today either are federally regulated as being 

part of Federal institutions or in States, they are regulated by the 

State banking or mortgage banking area of the State. Currently, 49 

States do have mortgage banking regulations or some type of licensing requirement, as well as the District of Columbia. There are 

typically extensive auditing requirements. 

17

If I might add, I think one of the main differences between mortgage brokers and bankers is that the whole mortgage broker industry started as a result of mortgage bankers essentially telling consumers that they would shop for the consumer among mortgage 

bankers. So there was a different proposition. There is a lot of focus 

on the filling out of the 1003, but in fact it is the sale of the loan 

and the services up front that I think is the fundamental difference, in addition to the fact that whatever loan is originated, the 

banker ultimately has associated risks with. 

So I think there are some fundamental differences on both the 

front end and back end. 

Mr. SCOTT. It is safe to say also that most of the complaints coming in are complaints concerning mortgage brokers. Concerns have 

been raised by consumer advocates that brokers, as opposed to 

bankers, tend to focus more on the short-term profitability of the 

loan origination, rather than the longer-term viability of the loan, 

and that the compensation system for mortgage brokers inevitably 

results in higher costs for borrowers than with the bankers; that 

brokers also use push tactics that, particularly with subprime refinance loans, are sold to, rather than sought by, lower-income and 

elderly homeowners; and that brokers use the yield spread premium perhaps in an abusive way. 

So we would safely say, then, that there is a need to take a much 

closer look certainly here, from the standpoint of the consumers, 

with the brokers. 

Now, when we come down to licensing, Mr. Hedges, I believe you 

represent the group that basically represents the interests of lowerand moderate-income individuals. Is that correct? 

Mr. HEDGES. Yes, sir. 

Mr. SCOTT. You have some concerns about this licensing provision in our bill. Given the fact that the consumer complaints are 

coming about the borrowers, then this approach to get a national 

licensing procedure is sort of a response to this problem, and that 

there are different laws in different States. There is a patchwork 

of different laws, and some States do not have any. 

Is your concern with the bill that you are against a national 

standard for licensing? Or are you concerned that your State particularly has some, that this threatens your State? Can you explain 

your situation? 

Mr. HEDGES. Yes, sir. In licensing itself, we have good standards 

as to bonding and to individual broker creditworthiness. Those 

weed out a lot of bad apples. If the uniform requirements replace 

the licensing provisions that we have, those requirements could be 

gone and open a door to a lot more people that should not be in 

the industry. 

Secondly, the broad exemptions that are in the exemption provisions would exempt from coverage of the licensing provisions most 

current brokers because any broker, and we have some brokers 

that do that now, who table-fund the loans, that is put the closing 

documents in their name, receive the check from the real lender, 

put the closing documents in their name, and then immediately assign them. So it is really not their credit risk, but to the extent 

that they do that, they are exempt from this bill. 

18

Now, that exemption means, together with the uniform licensing 

requirements, that in our State since these brokers are exempt, 

that would exempt them from the substantive revisions of the same 

licensing law, then it could do those two things, not only not weed 

out the bad apples, which we do with bonding and individual creditworthiness, but also it could exempt them from the substantive 

provisions. 

Chairman NEY. The time has expired. 

Mr. Miller? 

Mr. MILLER OF NORTH CAROLINA. Thank you, Mr. Chairman. 

Mr. Falk, how are you this morning? 

Mr. FALK. Thank you. Well, sir. 

Mr. MILLER OF NORTH CAROLINA. In May, I believe Mr. Nabors 

from your association testified before the committee. 

Mr. FALK. Yes, sir. 

Mr. MILLER OF NORTH CAROLINA. I was curious. I wanted to go 

over some of the points of his testimony and see if you agree with 

what he said then. 

I asked him about anti-steering provisions of the Ney-Kanjorski 

bill and in the Miller-Watt bill and in the North Carolina law that 

said that any mortgage broker had to make reasonable efforts with 

lenders to secure a loan that is reasonably advantageous to the borrower. 

I asked Mr. Nabors, do you think that should be your duty, that 

you should be under a duty to use reasonable efforts to get a borrower the best loan. Mr. Nabors said, ‘‘I believe that mortgage brokers do use reasonable efforts to get their customers the best loan 

they can.’’ I asked, okay, and do you think that should be a legal 

requirements? Mr. Nabors said, ‘‘I think, yes, it should.’’

Do you also think that it should be a legal requirement that 

mortgage brokers use reasonable efforts to get their customers the 

best loan they can? 

Mr. FALK. Well, of course you have put me in a position to disagree with my president, and I would at this point want to comment personally, as opposed to on behalf of the association, because 

I would not want to disagree on the record with my president. 

I believe that the current laws are sufficient. There is no need 

for additional anti-steering or other requirements to be placed in 

any kind of Federal legislation. 

Mr. MILLER OF NORTH CAROLINA. Even including the anti-steering provisions of Ney-Kanjorski? 

Mr. FALK. The current act I believe has some good wording, but 

it needs to be worked on. 

Mr. MILLER OF NORTH CAROLINA. When you say the ‘‘current 

act,’’ do you mean Ney-Kanjorski? 

Mr. FALK. The current existing law. Existing wording in the proposed act, we would need to look at that more closely and make 

sure that it would be candidly appropriate. We think that because 

mortgage brokers over the past 20 years have been able to generate 

from 20 percent up to now almost 70 percent of the marketplace, 

the marketplace is working and that pricing, generally speaking, 

and competition is doing most of the work for us. 

Mr. MILLER OF NORTH CAROLINA. Well, that does not really address the question I asked. 

19

Moving on to Mr. Nabors’ other testimony, in response to a question from someone else about another topic, I think a question from 

the other side of the aisle, there was a question to Mr. Nabors 

about whether a disclosure should be required on certain points. 

Mr. Nabors said that consumers, borrowers were already signing 

10 or 15 pieces of paper at a closing that they were not reading and 

he did not see the value of any additional disclosure. 

Do you agree with that? 

Mr. FALK. I will support my president, yes, sir. 

Mr. MILLER OF NORTH CAROLINA. Okay. If any law we pass can 

be waived by the consumer by signing a written waiver, why would 

the same not be true there, that they are not reading that either, 

if they are not already getting 10 or 15 pieces of paper to sign that 

they are not reading? 

Mr. FALK. From a personal perspective, I disagree with waivers, 

whether they be under Truth in Lending waivers on rescissions, or 

anything else. I think waivers are very dangerous for consumers 

and I would not want to see, personally, waiver provisions enhanced. 

Mr. MILLER OF NORTH CAROLINA. So the Ney-Kanjorski bill does 

have an anti-steering provision applying to mortgage brokers, but 

provides that it can be waived. You actually disagree with both 

provisions, that there should not be an anti-steering provision and 

there should not be a waiver provision? That just should not be in 

there at all? 

Mr. FALK. At the end of the day, it should apply to all creditors, 

and not single out one distribution channel. There should be no 

channel bias. So whatever applies to mortgage brokers should in 

fact apply to mortgage lenders and creditors alike. 

Mr. MILLER OF NORTH CAROLINA. Okay. Again, should anyone, 

then, should a mortgage broker be required to use their best efforts 

on behalf of the borrower to try to get the borrower the best loan? 

Should that be a legal requirement? 

Mr. FALK. Respectfully, I think that additional language in that 

area is not necessary. 

Mr. MILLER OF NORTH CAROLINA. Okay. One particular exchange 

with Mr. Nabors, I asked specifically about yield spread premiums 

and referred to a rate sheet that appeared to have yield spread premiums that go up if the borrower agrees to a higher rate of interest 

than what they qualified for based upon their credit score and their 

loan-to-value. 

I said, if you have a customer who could have gotten a 7 percent 

loan on the very same terms, and instead gets a 9 percent loan, but 

the broker gets a 1 percent additional yield spread premium in addition to whatever up-front commission they would have, does that 

strike you as something the law would allow. Mr. Nabors said, ‘‘If 

that is part of the agreement between you as a customer and me 

as part of my total compensation that has been disclosed to you, 

it would be okay.’’

That does not bother you, having a borrower pay more or having, 

rather, the lender pay the broker more if the borrower signs a loan 

with a higher interest rate than what they qualified for, or should 

have qualified for? 

20

Chairman NEY. The time has expired, but if you would like to 

quickly answer the question. 

Mr. FALK. Thank you, Mr. Chairman. 

I support my president’s position, but I will go one further. All 

origination channels earn back-end fees, power-plus pricing, servicing release premiums or yield spread premiums as it relates to 

mortgage brokers. So the very concerns that you have as it relates 

to mortgage brokers can be said for mortgage lenders, mortgage 

creditors, mortgage bankers, and mortgage originators that are 

with the depositories. It is the same issue, sir. 

Mr. MILLER OF NORTH CAROLINA. Mr. Chairman, that did not 

really respond to my question. 

Chairman NEY. The problem I have is that we have Mr. Miller, 

but also the gentlelady from Ohio has been yielded time ahead of 

the other members so she can get her question in. 

Mr. Miller? 

Mr. MILLER OF CALIFORNIA. Thank you, Mr. Chairman. 

Mr. Smith, can you offer a brief summary of what States are 

doing to regulate the mortgage banking industry versus mortgage 

brokers? 

Mr. SMITH. Yes, and it does vary from State to State. In my written testimony, we say North Carolina itself does regulate mortgage 

bankers in roughly the same way it regulates mortgage brokers. It 

varies from State to State beyond that. I think the testimony of 

most people is that there is registration or licensing of mortgage 

bankers. I believe the MBA testimony is that there is registration 

and licensing in most States in the United States now, at the firm 

level, not at the individual level. In North Carolina, we also license 

individual loan officers. 

I hope that is responsive. 

Mr. MILLER OF CALIFORNIA. Can you say that mortgage originators other than brokers are adequately regulated on a broad base? 

Mr. SMITH. I do not believe so, no. 

Mr. MILLER OF CALIFORNIA. If we have a minimum standard for 

everyone, would not that assure that consumers are protected 

across the board, rather than pick up different ones? 

Mr. SMITH. Yes, that would be very helpful. Yes, it would. 

Mr. MILLER OF CALIFORNIA. How would you go about that? 

Mr. SMITH. I can only tell you what we have done, which is to 

have a requirement for training. For a license for an individual in 

North Carolina, for those entities, either brokers or lenders, a person has to take training, less by the way than the bill requires. 

That was interesting to me, 8 hours, and pass an examination has 

to go through a criminal background check, and we also do a financial background check on each of them. 

Mr. MILLER OF CALIFORNIA. When you look at mortgage bankers 

and mortgage brokers, they are both doing significant work, they 

are both adequately meeting the demands, I think, that need to be 

met out there. 

But how do we come up with something that applies in a more 

reasonable fashion, let us say, than singling one out over another 

to regulate considering one should do this and one should do that? 

Some can say, well, it is the mortgage brokers because they are the 

21

first point of contact. Others say, well, it is mortgage bankers who 

are making the loans. 

They are both good guys, as far as I am concerned. There are 

some bad apples out there we are trying to weed out, but how do 

we approach this from a fair approach, basically? 

Mr. SMITH. Let me try to answer that as best I can. 

I think at the firm level, I actually do not know that there is 

much disagreement at this table; I could be wrong about this, 

about firms, companies, or individuals that operate either a brokerage or a lending business. That is pretty common in most States 

now. 

The issue has been the licensure of individuals. The question 

really is, is it reasonable or necessary to have individuals themselves carry a personal license, more or less like they do in the securities business. Even though they have to be attached to a 

broker-dealer, you still are licensed as a securities sales person 

yourself, as I think has been mentioned previously. 

So I do not know if it is reasonable or unreasonable, but I think 

it’s effective to require individual licensure of some kind for loan 

originators because they do not stay employed at the same place 

very long. A good producer goes from one employer to another to 

another. 

Mr. MILLER OF CALIFORNIA. That offer the best deals. 

Mr. SMITH. Absolutely. There is nothing wrong with that all, 

quite the opposite. I think that is the argument, sir, for originator 

licensing it allows the free agent market to work, for someone to 

carry business with him or her to various employers. In fact, in 

North Carolina we just revised our law to make it easier, frankly, 

for people to go between firms. Our view is like yours, I believe, 

that competition is good and people should be able to move. 

Mr. MILLER OF CALIFORNIA. For the rest of you, do you want to 

comment on the minimum standard for everybody? Yes, please, Mr. 

Falk? 

Mr. FALK. Mr. Miller, we believe that everyone should have an 

individual license because if you are caught doing something bad, 

you should as an individual have something to lose. So if you are 

an originator and you originate predatory loans or are convicted or 

some kind of financial fraud, we want that individual weeded out 

of the industry, not have him go from company to company, entity 

to entity, potentially working as an account representative for a 

large lender. 

We believe that anyone who is involved with the consumer 

should have education standards and a criminal background check 

so that if there is bad behavior, we can find them and rout them 

out of our industry. That only happens with an individual license. 

Thank you. 

Mr. MILLER OF CALIFORNIA. Anybody else? Yes? 

Mr. HEDGES. I agree with his assessment of that. Consumers 

agree that individual licensing is very important and individual responsibility. You need bonding and individual creditworthiness to 

go with that. His earlier suggestions for additional requirements to 

strengthen the licensing also appear very constructive. 

Mr. MILLER OF CALIFORNIA. So a minimum standard for everybody is what you think is a good approach, too. 

22

Yes, ma’am? 

Ms. BRYCE. On the mortgage banking side, we have seen a number of States over the last few years require individual licensing. 

One of the big concerns is there has been no reciprocity. So for 

those of us who operate call centers nationally, we have to have 

people individually licensed in duplicate States with duplicate 

fingerprinting requirements and duplicate educational requirements and duplicate testing. 

Chairman NEY. The time has expired. 

Mr. MILLER OF CALIFORNIA. Can the last individual respond? 

Chairman NEY. If we can hold to the time, then we can come 

back. 

Mr. MILLER OF CALIFORNIA. Okay. I will move down a chair and 

take 5 more minutes in a minute. 

Chairman NEY. The gentlelady from Ohio? 

Mrs. JONES OF OHIO. Mr. Chairman, Madam Ranking Member, 

thank you for your indulgence, and my colleagues as well for allowing me to move forward. I am no longer on the committee, but the 

issue is very important to me. 

My staffer in the back pointed out to me that Ohio has the second highest foreclosure rate in the Nation, with 2,482 new filings 

this year. This figure has more than doubled in the past year. 

I want to take a moment and not necessarily focus on my legislation, but to raise this question. We are trying to split hairs here 

in this room, saying, well we are not a broker, we are a banker; 

we are not a banker, we are a broker. But the people out there who 

are accessing mortgages do not know the difference. In fact, part 

of the problem is they think the broker is acting on their behalf 

and not realizing that the broker is acting on his or her own behalf, 

and there is not an agent on behalf of the person purchasing property. 

That is, quite frankly, part of the dilemma we face, particularly 

when we start talking about, and this is nothing against traditional 

banks because I bank with a traditional bank, but the reality is the 

brokers and the predatory lenders, and I do not put them in the 

same box, have made it much more convenient for a person who 

wants to purchase a home to be able to get a home. Oh, you cannot 

come at 9 o’clock in the morning, 9 o’clock at night; I will be at 

your home. If you do not have a witness, I will bring a witness with 

me. If you don’t have this, I will take care of that. And that has 

made it much easier for people who traditionally have not had access to financial services to get them. 

So what my question to each of you is—not to each of you. I am 

going to ask one because I do not have but 5 minutes. Let me ask 

Mr. Rodriguez, do you agree basically with what I have just said, 

Mr. Rodriguez? What do you think we ought to do, in 1 minute? 

Mr. RODRIGUEZ. Thank you. 

In 1 minute, I think that is absolutely right that in communities 

that is their experience. There is a lack of information certainly 

within minority communities, lack of experience with products. So 

a lot needs to take place there with respect to education, but there 

also has to be a vehicle for enforcement that goes way beyond what 

has been proposed here and is included certainly in our recommendations. 

23

At base, the question is, can we go back to communities who 

have had some of these experiences and be able to say, well, the 

answer is a national registry. I think the answer is no. There has 

to be much more. It has to be much more comprehensive. There 

has to be much more enforcement and accountability included in 

this measure for us to be able to go back into our communities and 

tell them we have done something about these issues and problems. 

Mrs. JONES OF OHIO. It has gotten so bad in Cleveland that 

Fannie Mae, in conjunction with the housing advocates in Cleveland and five banking institutions, has created a fund of $5 million 

in order to help people who have been in predatory lending situation to come out of it. It is like why don’t we regulate so that we 

do not have to spend money to bring people out of a predatory lending situation. 

Let me go to you, Ms. Bryce. You were the one who tried to distinguish between a banker and a broker. What makes a banker 

better than a broker? 

Ms. BRYCE. I think the major distinction is the fact that——

Mrs. JONES OF OHIO. No, not the major distinction. What makes 

a banker better than a broker, if there is such a thing. 

Ms. BRYCE. The banker is providing the actual funds. There was 

a comment earlier about the whole issue of table-funding. The 

banker who is providing the funds has risks for that loan, has interest-rate risk, has compliance risk, has repurchase risk. 

Mrs. JONES OF OHIO. Does a broker act as your agent? 

Ms. BRYCE. I would say not as our agent, no, as an independent 

contractor. There are times when brokers——

Mrs. JONES OF OHIO. Let’s go legally. 

Ms. BRYCE. I am. 

Mrs. JONES OF OHIO. No, no, no. Let’s go legally. If in fact they 

secure a loan on your behalf, they are acting as your agent. 

Ms. BRYCE. I would disagree with that characterization. I would 

say there is an independent contractor. They do business with a 

number of different bankers. 

Mrs. JONES OF OHIO. Including you. 

Ms. BRYCE. I do not do business with them. 

Mrs. JONES OF OHIO. Not you personally, but your institution. 

Ms. BRYCE. The industry, yes. 

Mrs. JONES OF OHIO. So the point is that if you are regulated, 

then your broker who acts on your behalf or as your agent ought 

to be regulated as well. 

Ms. BRYCE. I think there is still a disagreement in that regard. 

I would say they are an independent contractor who has the right 

to present a loan. 

Mrs. JONES OF OHIO. And if they bring it to you and it is good 

enough for you, you are going to take it, right? So you are going 

to get a benefit from him brokering on your behalf. 

Ms. BRYCE. That is correct. 

Mrs. JONES OF OHIO. I am done. I am out of time. I thank you 

very much. 

Mr. MILLER OF CALIFORNIA. [Presiding.] I am an older Ney. 

Mrs. JONES OF OHIO. Okay, older Ney. Thank you. 

24

Mr. MILLER OF CALIFORNIA. I would like to continue. Since I get 

the chair, I get another opportunity at this apple, so this is good. 

I have been in the development industry for about 35 years. It 

is interesting. Last time we discussed the concept of the need of a 

mortgage broker, bankers are right there saying yes absolutely, 

they work hand-in-hand with us. If they are not doing their job, we 

have to hire somebody and turn to them to do that job to meet the 

need. So I look at both of you as good people. 

A lot of times, builders will go out there and they want to build 

a project, and they will go to a mortgage broker. They will say, this 

is the project. The mortgage broker puts the information together, 

then will go out with lenders and shop the package to lenders and 

see who wants the package and who wants to give the best terms, 

offer the best type of conditions or whatever, rates, because they 

want to lend on that project. 

But once that has occurred, then there is a relationship between 

the property owner and the mortgage banker, but they are separate, and the same thing with the mortgage broker and the mortgage banker. Yes, they are both providing a service, but they are 

separate. 

I know, Mr. Hailer, you were wanting to respond to my question 

last time when we talked about standards for everyone, some reasonableness in the industry. Would you like to comment? 

Mr. HAILER. A very brief comment, Congressman. I feel that 

every loan that I make, my reputation is on the line both personally and as a bank, particularly because my particular bank has 

sold very few loans in its existence. We have sold a total of about 

$2 million in loans. That means when we generate a mortgage, we 

hold it and we keep it. As was said previously, we get the interest 

rate risk. We get everything that goes with it. 

We also provide one benefit for the customer, and that is if something goes wrong, whether it is an insurance payment, pro-rating 

of taxes, whatever the case may be, customers know where to find 

us. So consequently, my reputation, the reputation of my company 

is right there. That is not something I am willing to give up. I am 

fine with that. 

Mr. MILLER OF CALIFORNIA. From a mortgage banker, do you 

think it is to the benefit of a mortgage broker to impugn their own 

integrity by doing something to misrepresent a package to you? 

How often are you going to deal with that person in the future? 

Mr. HAILER. Are you asking me? 

Mr. MILLER OF CALIFORNIA. Anybody who wants to answer it. 

There is a close relationship, I think, between both of your organizations. I think if one does anything that is less than honorable 

and above-board, there is a direct impact on that individual or the 

business for doing that in the future. I would like your response 

on that because I do not think that has been addressed. People assume that you can get away with scurrilous acts or deeds and you 

can misrepresent a package or a portfolio and everybody is going 

to say, oh, okay, good, bring me another one. That is not how it 

works. 

Ms. BRYCE. I think that certainly mortgage bankers that work 

with mortgage brokers look at the quality of what they are getting 

25

from those mortgage brokers just like they would look at their own 

portfolio of products. 

Mr. MILLER OF CALIFORNIA. They are underwriters. 

Ms. BRYCE. If there are issues with quality, if there are issues 

with compliance, then I think most mortgage bankers would either 

talk to that broker, and if it does not improve, cease doing business 

with them because ultimately the mortgage banker then has responsibility for all of those issues with the loans. 

I think that what a mortgage banker cannot necessarily tell are 

whether there are issues with how the loan was sold in the first 

place. We cannot know whether or not there was a better product 

at a different lender that that broker does business with. We can 

only know what was submitted to us and whether or not it is commensurate with our requirements. 

Mr. MILLER OF CALIFORNIA. I know from the building industry, 

a builder is very much like a mortgage broker would be. You might 

get one loan, but if you prove to be bad, you will not get a second 

loan. We need to do everything we can to get the predators out of 

our industry, but I think you internally do a lot of that yourself. 

We have not acknowledged that. Yes, we need to go a step further 

to make sure the law is very clear about what a predator is, what 

a subprime lender is, what a position of a broker is, what a position 

of a mortgage banker might be. 

But the industry does a pretty good job when they can of trying 

to ferret out the bad players out there. I just do not want the perception to be created by this hearing that you can do something 

that is wrong, you can do something to impact some individual out 

there who is just trying to get a loan for their house, and put a 

package together, misrepresent it, and get a bad loan for him, and 

that is going to be acceptable in the future. I do not believe that 

is the situation, unless one of you would like to say that that might 

be. 

Mr. FALK. Mr. Miller, we agree with you. As mortgage brokers, 

we came up in 2002 with our model State statute initiative. Our 

chapters around the country have been pushing State regulations 

all across this country, to license all originators, to require background checks, to require licensing and education. So we have 

been, with some of our partners, our mortgage banker partners, 

our American Banker partners as you say, we are all in this together. 

Mr. MILLER OF CALIFORNIA. I love it. 

Mr. FALK. And so in essence, all of our reputations are personally 

and professionally on the line when a bad loan is made. But let’s 

not kid ourselves, it starts when an originator sits with a consumer. Those are the people we want to license, regulate and keep 

bad actors out, who are sitting at the table with the consumer, 

talking to the consumer and getting their personal information. 

That is why we say that all originators should be licensed and regulated. 

Mr. MILLER OF CALIFORNIA. Thank you for your input. 

Ms. Waters? 

Ms. WATERS. Thank you very much. 

I would like to thank Chairman Ney for holding this hearing. 

This particular subject matter has been of interest to me for a long 

26

time. Let me just say that I recognize that mortgage brokers and 

bankers have made products available in areas where many of the 

majors have not been. Because of that, people have been able to 

purchase homes. 

On the one hand, you can appreciate that. But on the other 

hand, you guys also know that there are some bad actors in your 

industry and that they have created a bad reputation for you. It 

is a combination of high fees, high interest rates, loan flipping, you 

name it. I am concerned that you have not done enough to get rid 

of the bad actors who are giving you a bad name. 

I am not so sure that preempting State law is the way to go 

about it. I oftentimes agree with my chairman, even though we are 

from different sides of the aisle, but on this one, I am not so sure. 

Mr. Kanjorski, Mr. Ney believe that by having these uniform 

standards, this may help with what I am trying to describe to you, 

but I do not think so. 

I do think that within the industry you should be more aggressive, even if you do not get State laws to do all of what you want 

to do. You guys should rein these people in. You should let them 

know that you are going to help put them out of business if in fact 

they are guilty of many of these practices that cause us to have all 

of these defaults on these loans. 

I am going to mention the name of a mortgage broker in SouthCentral Los Angeles, about a block from my house, Central Lending Real Estate. Write that down, Central Lending Real Estate on 

Vermont Avenue. What happens is when people lose their homes 

or when they feel that they are not being fairly treated, it ends up 

in our office. It ends up in our office, first, to do something. I have 

done everything from call mortgage brokers, visited them, to literally just having a fight with them about some of the practices. 

This one, I went to Central Lending Real Estate. They keep the 

doors locked for the most part because I think they have so many 

people who want to shoot them that they are afraid to let anybody 

in. They have messed over so many people. Of course, they did not 

want to let me in. I just stayed until they did. The principal at 

Central Lending Real Estate went into his office, closed his door, 

locked his door, and he sent some of the salesmen out to try and 

talk with me about this terrible, terrible case that I was involved 

in. 

I have had a lot of complaints about Central Lending Real Estate. This is the first opportunity I have had publicly to talk about 

how bad they are and some of the things they are doing, but it is 

a lot of them. Every month or so when I am in my district in various areas of my district, I have people coming up to me handing 

me the cards, another new mortgage broker, somebody has hung 

out their shingle on a sign, another little storefront business. They 

are just proliferating all over the place. Many of them I do not 

think are competent to be doing this work. 

Now, I do not think that this preemption is going to work because there are some States that are better than others in the way 

that they license or the way that they regulate. So my question is, 

what can you do to self-police the industry, to identify the bad actors, and to reduce the amount of the yield or whatever it is, the 

yield spread premiums that you collect? 

27

It is one thing to get a .5 percentage point or so higher on a loan 

because, you know, whatever the reason is, but when you start 

jumping 2 and 3 and 4 percentage points higher, that is just worse 

than predatory. What can you do? Mr. Falk? 

Mr. FALK. Ms. Waters, thank you. 

I would share great concern with you about this Central Lending 

Real Estate. I do not know if they are a broker or a lender or a 

banker or a real estate agent, and their licensing under California 

law. I know there are a number of different licenses available 

under California law. It is regrettable that a bad situation clearly 

appears to have taken place. I do not know the specifics. 

We agree with you when it comes to the exemptions under the 

current language under Title V. We believe that all of the exemptions under the licensing area should be dropped. The only exemption that should remain from the minimum standards should be for 

depository institutions and for employees of depository institutions. 

So any of the other exemptions, we believe are inappropriate. We 

believe that the education requirements and criminal background 

check requirements should be broader. 

The other thing I would comment on is pre-licensure education. 

We agree with you, candidly, that a lot of folks go into the mortgage business without any training, without any understanding of 

what is going on in the industry, how to fill out forms, how to treat 

people properly. So we believe that a rigorous education requirement should be installed. You should not be able to go from different troubled industries into our industry, and then jump out 

again as soon as you are caught. 

Mr. MILLER OF CALIFORNIA. You need to wrap up. The time has 

expired. 

Mr. FALK. Thank you. 

Mr. MILLER OF CALIFORNIA. Mr. Green, you are recognized for 5 

minutes. 

Mr. GREEN. Thank you, Mr. Chairman. Thank you for hosting 

these hearings. I would like to thank the ranking member as well. 

I thank each of you for being here today. You have been most enlightening, and I appreciate it greatly. 

The Federal Reserve has released its HMDA data, and that data 

has revealed that even after adjusting for such factors as income 

level, all persons making pretty much the same income, loan size, 

same person acquiring a loan about the same size, property location, acquiring a loan in the same neighborhood, Federal Reserve 

has found that African-American and Hispanic borrowers are more 

likely than white borrowers to be given a high-cost loan. 

A simple question: I assume that we all agree that this is invidious, that it is not the kind of thing that we would want to have 

happen, if all of these factors are the same. We would not want 

people singled out because of their ethnicity or because of their 

race. Now, if I am wrong, maybe I should have someone let me 

know it. Am I wrong? Is there someone who differs with me on 

that? 

Ms. BRYCE. I do not differ with you that there should not be discrimination in the mortgage market, but I would add that the other 

thing that the Federal Reserve and Chairman Greenspan said was 

that there are a number of factors that are not part of the HMDA 

28

data, and that they believe that when they include those that it 

would explain some of the differences. Some of those differences are 

credit scores, debt-to-income, loan-to-value and other issues that 

impact the pricing of a loan. 

Mr. GREEN. Well, let me ask you another way, then. Do you 

agree that discrimination exists in this marketplace? Is there anybody who thinks that it does not? Okay, we all agree. 

Given that we all agree that it exists, how do you propose we 

deal with it and end it? Because every study, not just this one, but 

every single study gives us the same results and every single time 

we have reasons that we can explain why, if we made just a little 

adjustment here or a little adjustment there, it would cause the 

study to look a little bit better. But no one differs; no one says that 

the discrimination does not exist. 

So now, given that the discrimination exists, and given that we 

have a system that allows people to get paid more for steering people to higher-cost loans when they qualify for a lower-cost loan, 

how do we end the discrimination is my question. 

Mr. Rodriguez, if you could give me a brief answer? 

Mr. RODRIGUEZ. Sure. I will try to be brief. It is a big question. 

I think there are a number of things. We certainly feel pretty 

strongly that much more enforcement of anti-discrimination laws 

are needed in that context. And certainly, we have to consider that 

the common response to these issues is credit scores. What we 

seem to overlook pretty consistently is that there are a lot of issues 

with respect to reporting of minority credit histories with credit bureaus and credit agencies, that has not gotten enough focus and attention over time. 

With respect to Latinos and immigrants in particular, for example, the issue is not bad credit, but no credit or very thin credit 

files. That in many processing centers instantaneously points them 

in the direction of a high-cost loan. It has nothing to do with their 

credit risk or their risk of repayment. So there are structural issues 

in the credit reporting system in addition to the discrimination 

issues that you raise that are steering families and minority families toward high-cost loans. 

A big part of the solution also has to be housing counseling and 

homeownership counseling at the local level, getting more folks in 

there talking to Latinos and minorities about home-buying and the 

home-buying experience and bridging the gap and helping them 

navigate through the system to get the best and most affordable 

loans. 

Mr. GREEN. Let me ask this question, if I may, because my time 

will expire soon. Do you think we ought to fire people who discriminate? Mr. Rodriguez? 

Mr. RODRIGUEZ. Yes. 

Mr. GREEN. Does anybody differ? Could we just fire them? 

Mr. MILLER OF CALIFORNIA. The gentleman’s time has expired. 

Mr. GREEN. Okay. Thank you, Mr. Chairman. 

Mr. MILLER OF CALIFORNIA. A quick question to Mr. Smith. The 

North Carolina Commission of Banks, are they discriminating intentionally? Yes or no. 

Mr. SMITH. There may be discrimination. It is hard to ferret out. 

Mr. MILLER OF CALIFORNIA. Do you try to ferret it out? 

29

Mr. SMITH. Yes, we do. 

Mr. MILLER OF CALIFORNIA. Okay. 

Ms. Bryce, Nexstar Financial Corporation, are you intentionally 

discriminating out there? 

Ms. BRYCE. I am sorry. Could you repeat the question? 

Mr. MILLER OF CALIFORNIA. Are you intentionally discriminating 

out there? 

Ms. BRYCE. Absolutely not. 

Mr. MILLER OF CALIFORNIA. I have the opinion based on what everyone was saying there, everybody was allowing willful discrimination to go forward, and that was bothersome to me. If that is the 

case, that is scary. 

Ms. BRYCE. I believe that the industry is very intent on fair lending and trying to be fair in that regard. The question was, is there 

no discrimination, and I could not say that there is never any. But 

I think that the industry is very focused on fair lending and being 

fair in the issuance of credit. 

Mr. MILLER OF CALIFORNIA. I have had meetings with Bank of 

America, Wells Fargo, and they go out of their way to make sure 

there is no redlining because there is a tremendous consequence for 

that to take place. That is just scary to think that this would not 

be proactive. 

Ms. WATERS. Will the gentleman yield? 

Mr. MILLER OF CALIFORNIA. I am going to have to go to Mr. 

Cleaver, and then we will try to come back. 

Mr. Cleaver? 

Mr. CLEAVER. I will yield to the ranking member. 

Ms. WATERS. Thank you very much. 

I just want to set the record straight. My acting chairman here 

talked about how Bank of America and all of the banks go out of 

their way to make sure there is no redlining. Because that is on 

the record, let me just put my statement on the record. 

Predatory lending is rampant, both with the major banks and the 

mortgage bankers and with mortgage brokers. It is a problem in 

America. The HMDA data is not bad data, even though, I guess it 

was Ms. Bryce who had to talk about what was not considered. So 

let us not leave here thinking that everybody is working so hard 

and there is no discrimination. It is and it is a big problem that 

must be dealt with. 

Thank you. I yield back. 

Mr. CLEAVER. Thank you, Mr. Chairman and ranking member. 

I was going in a completely different direction, but my colleague 

and your response has generated some continued interest in this 

area. Do any of you know of anyone who has been fired in any institution for discrimination? 

Mr. HAILER. May I answer that? 

Mr. CLEAVER. Yes, sir. 

Mr. HAILER. Congressman, I am not aware of anybody personally. I have no personal knowledge, but I do know approximately 

120 to 125 CEOs in Ohio in banks, and I know of none of them 

who would ever sanction that practice. 

Again coming back to your question, Mr. Green, I am a little intimidated by the circumstances. This is my first time testifying, so 

I apologize. 

30

Your question was, is there no discrimination. I cannot identify 

whether there is any or not, except for the fact that I look at 

HMDA as a banker and I like HMDA, believe it or not. I like 

HMDA because I think it is a useful tool, just like interest rate risk 

reports are a useful tool, but I do not think it is absolute. I think 

there are some flaws with HMDA, and the question is how do we 

get to more data and those types of things without violating privacy and so on and so forth. 

The bottom line is there are reasonable explanations as to why 

the data is the way that it is and how it comes out. But I know 

this; I personally would never stand for any kind of discriminatory 

lending practices in my bank and I believe that I am representative 

of the banking industry and particularly of the bankers that I 

know in Ohio. It is offensive to me. 

As far as predatory lending, it absolutely goes on in the marketplace and that is one of the reasons why we are in favor of Title 

V is to go ahead and have a baseline. 

Mr. CLEAVER. I yield to my colleague. 

Mr. GREEN. Would you yield just 1 minute, please? 

Friends, we live in a world where it is not enough for things to 

be right. They must also look right. It does not look right for us 

to consistently have data to indicate that minorities are discriminated when it comes to lending practices. It may be right, but it 

does not look right. 

I yield back. 

Mr. CLEAVER. The issue is if you do not know of any CEO of any 

bank who tolerates discrimination, and you do not know of anyone 

who has ever been fired for discrimination, that pretty much provides empirical evidence, doesn’t it, that nobody discriminates. 

Mr. SMITH. May I respond to your question? 

Mr. CLEAVER. This is a great country. God bless everybody. Let’s 

eat some apples. 

Go ahead. I am sorry. 

Mr. SMITH. May I respond? 

Mr. CLEAVER. Yes. 

Mr. SMITH. What we have done a lot of recently, and again discrimination is one thing. What we have done a lot of is take a lot 

of enforcement actions, not only in North Carolina, but around the 

country, to deal with people who are engaging in fraud and in flipping and a whole lot of other bad conduct, many in predominantly 

minority neighborhoods. 

I do not know, again, whether the HMDA data was statistical 

data that deals with disparate impact of loan policies, but to say 

we are not doing it and people do not get fired, people are getting 

put in jail. They are getting unlicensed. We are doing a lot of 

things to protect particularly vulnerable people in our State. I 

mean, the whole thrust of State legislation with regard to predatory lending in North Carolina and licensure has been focused on 

the subprime market fundamentally, which in many cases regrettably is a predominantly minority market. 

So to say we have done nothing about this problem I think is incorrect, or to say no one has ever been fired. People are getting put 

in jail. 

31

Mr. CLEAVER. I do not think anybody said that nothing has been 

done. 

Let me change the line of thinking. I was concerned that our 

country unfortunately has reached a point where we deny almost 

anything that relates to discrimination. Maybe we just cannot handle it. 

Who regulates the appraisal industry? 

Mr. SMITH. It depends. It is generally done at the State level and 

it varies from State to state. In North Carolina, for example, it is 

a subset of the real eState board, but it may vary. 

Mr. CLEAVER. I have no more questions, Mr. Chairman. 

Mr. MILLER OF CALIFORNIA. Thank you. 

I have heard a lot of good arguments here that justify Chairman 

Ney’s Responsible Lending Act that we are going to enact. We need 

to clearly define what ‘‘predatory’’ is and clearly understand that 

subprime is extremely beneficial, but there has to be an absolute 

line drawn between ‘‘predatory’’ and ‘‘subprime.’’ That is what we 

are going to try to do from a Federal perspective so there are not 

individual laws enacted in L.A. and San Francisco and San Diego. 

Mr. Davis, you are recognized for 5 minutes. 

Mr. DAVIS OF ALABAMA. Thank you, Mr. Chairman. 

Mr. Cleaver, I did not mean by my comment that is the light 

working or that you stop asking questions. I apologize for that. 

Let me make an observation at the beginning before I turn to my 

questions. One of the things that I think may explain a little bit 

of a gulf in how we are looking at these issues has to do with our 

word choice. I think when Ms. Waters, Mr. Scott, and Mr. Miller, 

and Mr. Cleaver, and Mr. Green, and myself use the word ‘‘discrimination,’’ your response to it, or I should say more accurately 

the industry’s response to it, is, well, you know, we do not think 

there is discrimination out there because we do not think there are 

people who are sitting there saying, gee, I see a black person or a 

brown person in front of me and I do not like them and I do not 

want to deal with them. 

I would agree with you that that kind of overt discrimination is 

probably a little bit less common today than it was 30 or 40 years 

ago, but I am not sure that is really the issue. I do no think the 

issue is whether or not people look at a black or brown or yellow 

person and say, ‘‘Gee, I don’t like you.’’ The issue is whether when 

they encounter people who may be lower-middle income and who 

may be of a racial minority, that some trigger goes off that this is 

a less-informed person, that some trigger goes off that this may be 

someone I can take advantage of. 

I think those of us on this side of the aisle would be inclined to 

think that that, too, is discrimination. So I make that point and 

then turn to some questions. 

Mr. Miller asked you I think a very interesting line of questions 

about what the standard ought to be for mortgage brokers and 

whether or not the standard of providing favorable or the best favorable applicable loan to a consumer ought to be codified in some 

way. 

Let me give you two contrasts. I am a lawyer. A number of us 

on this side of the aisle, including Mr. Miller, are lawyers and people on the other side of the aisle are lawyers. We have in every 

32

State something called a canon of ethics. That canon of ethics has 

the force of law and if you violate it and the State bar believes you 

violated it, you have lost your right to practice law. So it has the 

effect of being a legal instrument of the State. A lot of us know doctors. In almost every State, there is a canon of ethics for doctors. 

Once again, if you violate it, you lose your license that in effect has 

the force of law. 

There is a requirement in the canon of ethics for doctors and lawyers that you have to provide the best service possible to the person you contract with, either your client or your patient. If you accept a case, you do not get to give them the Wal-Mart version or 

the Super Sam’s version. You have to give them the best, strongest 

service that you can provide. The same for medicine. You do not 

get to say, I will give you my A game if you are on this list or my 

B game if you are on this list. 

Mr. Falk, is there any statutory provision or any written provision that you know of anywhere in the country that codifies that 

mortgage brokers provide the best reasonable service that is applicable to a given consumer? Give me a quick answer on that. 

Mr. FALK. I am not aware of any State regulation. 

Mr. DAVIS OF ALABAMA. Are any of you aware of any written 

statutory instrument that is comparable to the State bar or State 

medical regulations I described? Are any of you aware of any? 

Mr. HAILER. The only thing I can offer is every regulation that 

banks are subject to encompasses that, but as far as you have described it, no, but I can tell you that it is all-encompassing in every 

reg that we comply with. 

Mr. DAVIS OF ALABAMA. All right. Mr. Rodriguez, let me perhaps 

turn to you to provide a quick answer. Why are mortgage brokers 

so different from doctors and lawyers in that doctors and lawyers 

have to live by these standards and mortgage brokers do not, in 30 

seconds or less? 

Mr. RODRIGUEZ. I do not know. 

Mr. DAVIS OF ALABAMA. Do any of you know of any reason why 

mortgage brokers are that different from doctors or lawyers, when 

doctors or lawyers have to live by the standard and mortgage brokers do not? Can anybody articulate a difference? Yes, sir. 

Mr. HEDGES. No, Mr. Davis. I would suggest that a substantive 

requirement on brokers, that each borrower get the best loan that 

their credit entitles them to would make a big difference in this 

problem. 

Mr. DAVIS OF ALABAMA. I agree with you. Because of time, I will 

stop you with agreement and ask you one final question. There is 

another difference. In my State and I think every other State, bad 

actors who are lawyers and doctors are listed in a public filing. If 

a bar complaint is filed against you and resolved in an adverse 

manner to you, that is published. If a doctor is found to be negligent and a doctor is found by the medical association to be a nonperforming or a bad actor doctor, that is published. 

Again, do any of you know of any provision at the State level 

where there is a list of bad actors who are mortgage brokers, mortgage brokers who have been caught engaging in fraudulent practices? Do any of you know of a database that collects and lists bad 

actors among mortgage brokers? 

33

Mr. SMITH. My Web site. Visit it anytime. 

Mr. DAVIS OF ALABAMA. All right. And your Web site is what? 

Mr. SMITH. NCCOB.org. 

Mr. DAVIS OF ALABAMA. Okay. And you represent? 

Mr. SMITH. I am in the State of North Carolina. I have a list. 

I have published every single order I have issued. 

Mr. DAVIS OF ALABAMA. Do you know of any States who do what 

North Carolina does? 

Mr. SMITH. I do not. 

Mr. DAVIS OF ALABAMA. Our State requires this information to 

be public. That is the question about what this bill does in making 

that database confidential. 

Mr. SMITH. Excuse me, if I may say one other thing. In my testimony, which you were not here for, but you did not miss a lot, but 

one thing I did say was that the States are now working on a database to do exactly the thing you are talking about. 

Mr. DAVIS OF ALABAMA. And the thing would be listing bad actor 

mortgage brokers? 

Mr. SMITH. Yes, nationally. 

Mr. DAVIS OF ALABAMA. Okay. 

Chairman NEY. [Presiding.] I have to note the time has expired 

and we still have Mr. Kanjorski. 

Mr. Kanjorski? 

Mr. KANJORSKI. Listening to the discussion so far, it seems to me 

that we may be searching for the perfect and as a result miss 

achieving the good. In a perfect world, we would like every individual to pay the least on their loan or mortgage and get paid the 

highest amount on their savings account or CD. 

But, Mr. Hailer, I will start off with you. It is sometimes fun to 

pick on bankers. Do all banks pay everyone the same rate on CDs 

and savings accounts? 

Mr. HAILER. The answer to that is absolutely no. 

Mr. KANJORSKI. That is right. It is a competitive world. 

Mr. HAILER. It is. 

Mr. KANJORSKI. Let us reverse it to mortgages. Does everyone 

pay the same amount on every mortgage in the country or are 

there differences? 

Mr. HAILER. There are differences and then there are reasons 

why. 

Mr. KANJORSKI. Right. Most often they are subjective reasons, 

really. We try and reduce them to a formula. But in reality, even 

if you look at a credit rating, it is a subjective evaluation based on 

some criteria. 

Mr. HAILER. It depends on what the range is and what the credit 

rating is based on, and how the credit rating is used. 

Mr. KANJORSKI. As one of the co-authors of this legislation, I 

guess I want to clear up a few things. One, it is our hope, and I 

think I speak for Mr. Ney, that we have a national uniform system 

to drive down the cost of money instead of having to go through 

the 50 different entities and maybe hundreds of others as municipalities get into this ballgame, which they have. Overall on that 

basis, if you make money available, whether it is in the subprime 

market or in conventional financing, you are going to drive down 

34

the cost of money through efficiency. Would anyone at the table 

disagree with that? 

I have come to a conclusion, after listening to my colleague Mr. 

Davis talk about applying a legal standard, a fiduciary duty standard, or a professional standard like that of a lawyer or a doctor. 

This industry is a business. I think that we should recognize that 

it is not a profession. I do not see how it can be made absolutely 

uniform in terms of applying such a standard. 

If you ever go to the best deal standard for each mortgage transaction, I guess I will leave Congress, enter the bar again, and just 

become the greatest trial lawyer that has ever existed because 

there would be an unlimited number of cases. Every deal that does 

not match the lowest deal is not the best deal. That is ridiculous. 

What we are trying to do is get the overall national cost of money 

down for mortgages. We are trying to open up and protect people 

in some way and come up with a reasonable uniform standard. 

I am convinced that we do need a standard for brokers. I think 

it is essential that we know who the bad actors are. We know there 

are minimal capacities there. Then we have to rely in a way on 

what I always call the ‘‘self-help’’ in the industry. 

We expect bankers not to turn their eyes when dealing with a 

broker when they obviously see it is a bad deal. However, bankers 

can get away with it because they did not have any contact with 

the consumer, or they did not know what to do with it, or they may 

not have direct liability on it. I would love to find a mechanism to 

go with that. 

Yes? 

Mr. HAILER. Congressman Kanjorski, in Middlefield, Ohio, there 

is a mortgage broker who I heard from a friend of mine who is a 

CEO over there who has been preying upon the Amish community. 

There is a very large Amish community over there. How it came 

to be discovered was he was getting a lot of payoffs at his bank 

from long-time customers. He started investigating it. Then he 

started looking at some of the documents. In the documents he 

found excessive fees up front that were of course rolled into the 

document based upon the appraisal, so the people are not only getting whacked with the fees up front, they also get the benefit of 

having the costs of carrying those fees over a long period of time. 

So they are getting hit a couple of times. 

I am proud to say that my friend has brought this to his attorney’s attention. His attorney is getting sued by the mortgage 

broker for bringing up the issue, but nonetheless much like in the 

case that you have given, Congresswoman Waters, the marketplace 

in that case has served as a regulator because the word has gotten 

around and the bishops within the Amish community have responded. Even in your own area, you will find this to be true. 

The bottom line is that they have closed ranks and have rooted 

that person out. So that is a good story of what is in place right 

now, particularly with regulations working. 

Mr. KANJORSKI. Right. In the banking field, do we not have a 

certain type of loan called a ‘‘character’’ loan? If you are of bad 

character, you cannot get a loan at some banks. 

Mr. HAILER. If you are a bad character and we know, you cannot 

get a loan. 

35

Mr. KANJORSKI. That is right. On the other hand, if you are of 

good character, sometimes you do not nearly need anywhere near 

the collateral that other people may need because of your character. 

Mr. HAILER. My favorite loan that I ever made was to a lady 

whose husband committed suicide. Her children were made fun of 

in school because of it, and she came to us for a loan. She did not 

have the credit score and she marginally had the income. I will not 

take anything in the way of gratuities or anything of that nature 

as a banker. She developed a career as a caterer and built a very 

successful career, and basically came back from the dead financially. 

We made her a home loan. The look on her face when she was 

approved for the mortgage stayed with me. She want to give me 

something. She wanted to do something, and I said I cannot take 

anything. So I went out to my car, which I leave unlocked, and 

there was this box of cakes and cookies. It is probably one of the 

most meaningful gifts I have ever gotten in my life. That is great 

stuff and it is very true. I do not think I am alone in that. 

Mr. KANJORSKI. I have always applied what I call a 5-percent 

bastard rule to analyze these issues; there are 3 percent to 5 percent of people in our society—who no matter what laws, rules or 

what regulations we pass—are going to try and find a way to push 

the edge of the envelope and go over it. But 95 percent of almost 

any participant in any profession, any business, any commercial activity in this country, will try and do the right thing because they 

are after establishing good character. 

Now, all we are trying to do is find some mechanism to reduce 

that 5 percent, but not to the extent that it becomes suffocating on 

the industry. I heard some of the discussion here and I just want 

to point it out. 

Chairman NEY. I would note that there are 6 1/2 minutes left on 

the vote. 

Mr. KANJORSKI. Is there anyone at this table that wants us to 

do nothing, just get out of this field and leave it as it is? 

Ms. BRYCE. I think it is important for you to continue with this 

bill. We support the bill as it is structured generally. One of the 

concerns is that you are talking about the economic marketplace 

and the importance of preserving that. I think it is important to 

continue to have competition in various markets because that gives 

consumers more opportunity to shop and find a better deal. 

I also think that in terms of looking at the marketplace we have 

to protect the liquidity in the marketplace. One of the issues is assignee liability. We have seen situations where investors have said 

we are not going to buy these loans. We had a situation where a 

warehouse lender actually said we are not going to fund any more 

loans in the State of Massachusetts because we cannot tell which 

ones are high-cost loans or not, so we are not going to fund anything. We do not want to see that happen in the marketplace. We 

want to protect the liquidity so that there is an opportunity for 

competition. 

Mr. KANJORSKI. Thank you very much. 

I know we are very close, and I yield back. Thank you, Mr. 

Chairman. 

36

Chairman NEY. Thank you. 

I want to thank the witnesses and the members today for an important hearing. 

I want to note that members may have additional questions for 

this panel and they may want to submit to the panel in writing. 

Without objection, the hearing record will remain open for 30 days 

for members to submit written questions to the witnesses and to 

place their responses in the record. 

I want to thank the panel today. Thank you. 

[Whereupon, at 11:59 a.m., the subcommittee was adjourned.] 

(37)

A P P E N D I X

September 29, 2005

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